Md. Code Regs. 12.03.01.21

Current through Register Vol. 51, No. 12, June 14, 2024

Section 12.03.01.21 - Pre-Disciplinary Proceeding Procedures - Case Presentation

A. The defendant or the defendant's representative or the facility representative, if designated, or facility staff may present evidence and argument as part of the presenting party's case presentation during the evidentiary phase of the defendant's disciplinary proceeding.

(1) The defendant's refusal or failure to appear before the hearing officer or the defendant's removal from the defendant's disciplinary proceeding shall be considered a waiver of the defendant's opportunity to make a case presentation during the evidentiary phase of the defendant's disciplinary proceeding.

(2) The defendant or the defendant's representative or the facility representative and not the hearing officer, are responsible for presenting evidence requested by the defendant or the defendant's representative or the facility representative or call approved witnesses as part of the presenting party's case presentation during the evidentiary phase of the defendant's disciplinary proceeding.

(3) If the defendant or the defendant's representative or the facility representative, if designated, or facility staff do not present the requested evidence or call an approved witness during the presenting party's case presentation prior to the hearing officer closing the evidentiary record of the defendant's disciplinary proceeding, the opportunity to present evidence or call the witness is considered to be waived.

B. The facility representative may make an evidentiary case presentation on behalf of the facility as part of a defendant's disciplinary proceeding for an inmate rule violation charged for consideration by the hearing officer.

C. If a facility representative was not designated, the hearing officer shall consider the report found in the defendant's Notice of Inmate Rule Violation form, an attachment, or other evidence that may have been submitted by staff as to the inmate rule violation charged as the facility's evidentiary case presentation.

D. The defendant's representative or, in the absence of a representative, the defendant, may elect to make an evidentiary case presentation in response to the inmate rule violation charged for consideration by the hearing officer.

E. Testimony.

(1) Testimony of a witness permitted by the hearing officer shall be under an oath administered by the hearing officer.

(2) Before a permitted witness testifies, the hearing officer shall use the following oath to swear in the witness at the defendant's disciplinary proceeding: "Do you solemnly swear or affirm under the penalties of perjury that the testimony you are about to give at this disciplinary proceeding shall be the truth, the whole truth, and nothing but the truth? "

(3) The witness is required to provide an affirmative response to the oath before the witness begins to testify.

(4) The hearing officer may limit the scope of testimony presented by or questioning of a requested witness:

(a) If it is determined that the testimony may pose a risk to the security of the facility, Department, or community or safety of an inmate, staff, or an individual; or

(b) If the testimony by or questioning of the requested witness is:

(i) Irrelevant to the merits of the defendant's disciplinary proceeding; or

(ii) Cumulative to a factual matter or evidence already in the record of the defendant's disciplinary proceeding.

(5) A hearing officer may elect to call a witness or view evidence not requested by either hearing participant in order to clarify:

(a) Evidence presented;

(b) A fact in evidence; or

(c) A policy, procedure, or practice.

(6) A witness may not be compelled by the hearing officer to make an appearance, testify, or answer a question asked.

(7) If the witness refuses to appear, testify, or answer a question asked, the hearing officer may not dismiss the rule violation charged due to the failure of the witness to appear, testify, or answer a question asked.

(8) If the witness who has refused or failed to testify is a staff member, the hearing officer may, but is not required to, draw a negative inference from the refusal to testify.

(9) The facility representative, the defendant and the hearing officer may question a witness giving testimony except that if the defendant has a representative, only the representative, and not the defendant, may question a witness giving testimony.

F. Inmate Medical Information Presentation.

(1) A defendant's request for the defendant's own medical records as evidence shall be concluded to be the defendant's authorization for staff to obtain and disseminate the medical record requested by the defendant and to include that medical record in the case record.

(2) The failure of the defendant to list the requested defendant medical record as an evidence request at service of the Notice of Inmate Rule Violation form and Notice of Disciplinary Hearing form shall be concluded to be a waiver of the opportunity to request the medical record.

(3) A defendant may not review another inmate's medical record.

(4) Upon the making of a proffer by the defendant that another inmate's medical record would contain relevant and non-cumulative evidence, the hearing officer may view the evidence in camera without releasing the information to the defendant.

(5) Upon approval of the managing official, a staff member shall have access to an inmate's medical record if the record contains evidence that is relevant to the case, and disclosure of the medical record to the staff member is necessary for an investigation or a disciplinary proceeding.

(6) The hearing officer may:

(a) By email or conference call, request facility medical unit staff to provide inmate medical information deemed relevant and necessary by the hearing officer for the purposes of the defendant's disciplinary proceeding; and

(b) Review an inmate medical record if the hearing officer determines that review of a medical record is necessary for the disposition of the inmate rule violation charged regardless of whether the inmate who is the subject of the medical record has signed a written release of the inmate 's medical information.

G. The hearing officer may:

(1) Prior to rendering a decision as to the inmate rule violation charged, consider if the defendant has a disciplinary conviction history for each inmate rule violation charged; and

(2) Consider the disciplinary conviction history in determining whether the defendant committed the inmate rule violation charged; but

(3) May not render a decision as to the defendant's inmate rule violation charged based solely on the defendant's disciplinary conviction history or the lack thereof.

H. Prior to closing the record, the hearing officer may consider any information available to the hearing officer in an official database maintained or used by the Department such as, but may not be limited to:

(1) The Offender Based State Correctional Information System (OBSCIS);

(2) Offender Case Management System (OCMS);

(3) Criminal Justice Information System (CJIS);

(4) Any telecommunication provider to the Department;

(5) The SafetyNet including the Department's policies and procedures;

(6) Any inmate's electronic case file or hard copy base file; or

(7) Department memoranda, regulations, directives, notices, or bulletins.

I. The hearing officer is permitted to take official or administrative notice of facts without the benefit of adversarial presentation of evidence.

(1) The hearing officer shall advise the parties of the findings of fact of which the hearing officer has taken official or administrative notice.

(2) The hearing participants shall be given an opportunity to rebut, through argument, any relevant facts that the hearing officer would otherwise presume to exist under the doctrine of official or administrative notice.

J. The defendant's representative or, in the absence of a representative, the defendant and the facility representative may raise objections.

(1) When considering an objection, the hearing officer may:

(a) Allow the opposing party the opportunity to comment on the merits of the objection raised; and

(b) Consider the merits of the objection.

(2) The hearing officer shall inform all parties of the hearing officer's decision to sustain or overrule the objection raised.

K. Facility Case Presentation.

(1) The facility bears the burden to prove that it is more likely than not that the defendant committed the inmate rule violation charged.

(2) The facility's case presentation as to the inmate rule violation charged may include, but may not be limited to:

(a) Argument on the merits of evidence that may be or was presented at the defendant's disciplinary proceeding for the inmate rule violation charged;

(b) Presentation of evidence;

(c) Testimony by the facility representative; or

(d) Calling or questioning a witness.

(3) If designated, the facility representative shall:

(a) Make the case presentation for the facility; and

(b) Include in the facility's case presentation:

(i) The event report found in the Notice of Inmate Rule Violation form; and

(ii) If applicable, an attachment or other evidence submitted by staff regarding the inmate rule violation charged.

(4) In the absence of the facility representative, the hearing officer shall accept as the facility's case presentation:

(a) The report found in the defendant's Notice of Inmate Rule Violation form; and

(b) If applicable, an attachment or other evidence submitted by staff regarding the inmate rule violation charged.

(5) The facility, and not the hearing officer, has the burden of presenting evidence or calling a permitted witness as part of the facility's case presentation prior to the hearing officer closing the evidentiary record.

(6) The failure of the facility to present requested evidence or call a permitted witness prior to the hearing officer closing the evidentiary record shall be concluded to be a waiver of the opportunity to present the requested evidence or call a witness.

(7) The failure of the facility representative to question a witness at the time the witness is called or after giving testimony, prior to the witness being excused, shall be concluded to be a waiver of the opportunity to question that witness.

L. Defendant Case Presentation.

(1) The defendant may make an evidentiary case presentation in accordance with this regulation.

(2) The defendant is not obligated to make an evidentiary case presentation; and

(3) The failure of the defendant to make an evidentiary case presentation may not be considered as an adverse inference toward the defendant or concluded to be an admission of guilt.

(4) If the defendant has designated a representative, only the representative may question witnesses and make arguments.

(5) The defendant's evidentiary case presentation may include:

(a) Argument on the evidentiary merits of evidence that was presented by the facility or on the inmate rule violation charged;

(b) Presentation of evidence;

(c) Testimony, if volunteered, by the defendant; and

(d) Presenting witness testimony.

(6) The defendant is not obligated to testify as part of the defendant's evidentiary case presentation.

(7) If the defendant testifies as part of the defendant's evidentiary case presentation and is questioned by the hearing officer or the facility representative, the defendant is obligated to and shall respond to the question asked.

(8) The hearing officer may draw an adverse inference to the defendant's evidentiary case presentation if the defendant, after giving testimony:

(a) Refuses or fails to answer a question asked; or

(b) Evades answering a question asked.

(9) The defendant, and not the hearing officer, has the burden of presenting requested evidence or calling a requested and permitted witness as part of the defendant's case presentation prior to the hearing officer closing the evidentiary record.

(10) The failure of the defendant to present requested evidence or call a requested witness during the defendant's case presentation prior to the hearing officer closing the evidentiary record shall be concluded to be a waiver of the opportunity to present the requested evidence or call a requested witness.

(11) The failure of the defendant to question a witness at the time the witness is called or after giving testimony prior to the witness being excused shall be concluded to be a waiver of the defendant's opportunity to question the witness.

M. Non-Staff Witness Request.

(1) The appearance of an individual as the requested witness, who is not identified as staff, is voluntary and that individual may not be compelled to:

(a) Appear;

(b) Give testimony; or

(c) Answer a question asked.

(2) A requested non-staff witness may not be permitted if the individual requires a staff escort or transportation by vehicle to the location of the defendant's disciplinary proceeding.

(3) A requested non-staff witness may be permitted to testify, at the discretion of the hearing officer, by telephone conference call.

N. Staff Witness Request.

(1) When approved by the hearing officer, staff is required to appear, testify, and respond directly to questions asked by the defendant or defendant's representative, the facility representative, or the hearing officer.

(2) The hearing officer may direct staff not to answer a question and may direct a hearing participant to ask a different question if the hearing officer determines the question asked is:

(a) Irrelevant;

(b) Cumulative or repetitive; or

(c) Argumentative or abusive.

(3) If the staff witness requests the opportunity to review a report or other evidence prior to or after being asked a question, the hearing officer shall permit staff the opportunity to review the Notice of Inmate Rule Violation form or Notice of Inmate Disciplinary Hearing form, a report, an attachment, or other evidence prior to answering a question.

(4) If staff refuse or fail to make an appearance, testify, or answer a question asked, the hearing officer may:

(a) Conclude that the witness willfully elected not to appear, testify, or answer the question asked; and

(b) Draw an adverse inference to the facility's case presentation as to the inmate rule violation charged.

O. Security Sensitive Testimony. If testimony of a requested witness is determined to be security sensitive, the hearing officer, in order to preserve the security and safety of the witness:

(1) May take testimony from the witness in-person or by telephone conference call without the defendant, defendant's representative, or facility representative present;

(2) May, if safety and security permit, provide the defendant, the defendant's representative, or the facility representative with a general summary of the security sensitive testimony taken from the witness, but may not provide factually detailed content of the testimony deemed security sensitive; and

(3) May, if safety and security require, only advise the defendant, the defendant's representative, or the facility representative that, for the purposes of the record of the defendant's disciplinary proceeding, the testimony is security sensitive and may not be revealed.

P. Telephone Conference Call - Witness Testimony.

(1) The hearing officer may elect, for convenience of the witness or hearing participants, or to ensure that the hearing is held in a timely manner, to use a telephone conference call to take testimony from a requested witness.

(2) The hearing officer shall, prior to the giving of testimony, advise the individual testifying that the testimony is audio recorded.

Q. Rebuttal Presentation and Closing Argument.

(1) The hearing officer, at the conclusion of the defendant's case presentation, shall provide the facility representative the opportunity to rebut the evidentiary case presentation of the defendant by presenting additional evidence and calling a witness.

(2) The hearing officer may provide the defendant and the facility representative the opportunity to make a closing argument.

R. If the defendant waived the defendant's disciplinary proceeding, the hearing officer shall conclude that the defendant waived the opportunity to make an evidentiary case presentation.

S. Prior to closing the evidentiary record, the hearing officer shall inquire of both the defendant or defendant's representative and the facility representative whether the case presentation of both parties has concluded.

T. At the conclusion of the case presentation by both the defendant or defendant's representative and the facility representative, the hearing officer shall advise the hearing participants that the evidentiary record of the defendant's disciplinary proceeding is closed.

U. If the hearing officer determines there is no other matter to be considered, that has not already been presented or addressed, the hearing officer may close the evidentiary record and proceed to the fact finding and decision phase of the defendant's disciplinary proceeding without the consent of the parties.

Md. Code Regs. 12.03.01.21

Regulation .21 adopted effective 45:13 Md. R. 668, eff. 7/2/2018